Helget v. Hays, Kansas, City of et al
Filing
112
MEMORANDUM AND ORDER granting in part 50 Motion for Protective Order; granting in part and denying in part 33 Motion to Compel Defendants to Initiate a Litigation Hold, for Preliminary Sanctions for Spoliation of Evidence and for Leave to Conduct Supplemental Discovery on Spoliation. Signed by Magistrate Judge Kenneth G. Gale on 3/31/14. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
FIRMA HELGET,
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Plaintiff,
vs.
CITY OF HAYS, et al.,
Defendants.
Case No. 13-2228-KHV-KGG
MEMORANDUM AND ORDER
Before the Court is Plaintiff’s “Motion to Compel Defendants to Initiate a
Litigation Hold, for Preliminary Sanctions for Spoliation of Evidence and for
Leave to Conduct Supplemental Discovery on Spoliation.” (Doc. 33.) For the
reasons set forth below, this motion is GRANTED in part and DENIED in part.
Also pending is Defendant City’s “Motion for Protective Order.” (Doc. 50.) For
the reasons set forth below, Defendant’s motion is GRANTED in part.
BACKGROUND
A.
Nature of Case.
Plaintiff brings this lawsuit against her former employer, Defendant City of
Hays, Kansas (Defendant City), as well as individual Defendants Toby Dougherty,
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the City Manager for Defendant City, and Donald Scheibler, Chief of Police for
Defendant City. (See generally Doc. 1.) Plaintiff brings various claims against
Defendants for the allegedly wrongful termination of her employment.
Specifically, she contends that she was improperly fired after submitting an
affidavit in a lawsuit (hereinafter “Dryden lawsuit”) brought by former Hays,
Kansas Police Department Officer Blaine Dryden against Defendant City,
Defendant Dougherty, and the former Chief of Police “alleging interference with
his constitutional rights . . . .” (Id., at 3-4.) Plaintiff contends, in part, that her
termination constituted an unlawful interference with her right to testify at trial in
violation of the First Amendment, an unlawful interference with her right to speak
on a matter of public concern, and a violation of public policy. Defendants deny
Plaintiff’s claims and contend that her employment was terminated “because she
could not maintain confidentiality . . . misused city computers . . . and could not
effectively work with her superiors.” (Doc. 42, at 1.)
B.
Nature of Spoliation Motion.
In the matter before the Court, Plaintiff argues that Defendants failed to put
a litigation hold in place, spoliated evidence by destroying a server containing
certain internet usage logs, “and appears to have overwritten or deleted other
electronic documents and ESI, including e-mail messages related to Firma Helget,
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users’ internet history on their hard drives, and documents on several of the key
players’ PC computers.” (Doc. 33-1, at 1-2.) Plaintiff
asks the Court to compel the defendants to put a litigation
hold in place, to produce the forensic images of the hard
drives from the five key players and for the computer that
had been assigned to Ms. Helget, to pay for the necessary
forensic imaging and analysis of these hard drives to
attempt to recover the deleted or destroyed documents
and ESI, and to pay Ms. Helget’s attorneys’ fees for
having to bring the instant motion.
(Id., at 2.)
Defendant responds that Plaintiff incorrectly “presupposes that – once
litigation is instituted, the defendant has an obligation to preserve everything – its
computers, documents, information – as is.” (Doc. 44, at 2.) Defendants argue
that they were only “under a duty to preserve evidence relevant to this litigation,”
which Defendants contend they did. Id. (emphasis in original).
C.
Notice to Defendant of Document Retention.
Plaintiff’s employment was terminated on May 16, 2012. (Doc. 1, at 4.) On
June 26, 2012, Plaintiff’s counsel sent defense counsel a letter requesting the
preservation of certain information, including “internet usage, including e-mail
usage, by each employee in the Hays Police Department for the period beginning
January 1, 2012 and ending May 16, 2012.” (Doc. 33-3.)
Plaintiff’s lawsuit was filed on May 15, 2013. (Doc. 1.) On June 28, 2013,
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the Court entered its Initial Order Regarding Planning and Scheduling. (Doc. 4.)
That Order specifically instructs the parties that
[i]n developing their case management plan, counsel
should keep in mind that electronically stored
information (ESI) was the subject of very significant
amendments to Fed. R. Civ. P. 16, 26, 33, 34, 37, and 45
that went into effect on December 1, 2006. Therefore,
prior to the Rule 26(f) planning conference, counsel
should familiarize themselves with those amendments
and review the ESI guidelines that are posted on this
court's Internet website:
(http://www.ksd.uscourts.gov/guidelines/electronicdiscoveryguidelines.pdf)
As this court's ESI guidelines make clear, prior to the
Rule 26(f) conference, counsel also should become
knowledgeable about their clients' information
management systems and their operation, including how
the information is stored and retrieved.
(Id., at 1-2.)
The Court entered its Scheduling Order on August 13, 2013, which included
the following instructions regarding ESI:
Consistent with the parties’ agreements as set forth in the
planning conference report submitted pursuant to Fed. R.
Civ. P. 26(f), electronically stored information (ESI) in
this case will be handled as follows: As the issues arise.1
1
This stipulation in the Scheduling Order is grossly inadequate in a case in which ESI
is a known issue. It reflects on a failure of the parties to adequately discuss this issue prior
to the conference and, perhaps, on a failure of the undersigned Magistrate Judge to insist that
they do so. This dispute is the wages of that sin.
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(Doc. 21, at 3.)2
D.
Nature of Motion for Protective Order.
Subsequent to Plaintiff’s spoliation motion, Plaintiff served a subpoena for
the deposition of a corporate representative of Defendant City on issues relating to
spoliation. (Doc. 41.) The second of the “matters for examination” enumerated in
the deposition subpoena is “[t]he details surrounding any efforts by the City of
Hays, Kansas to initiate and comply with a “litigation hold” related to the lawsuit
filed by Blaine Dryden against the City of Hays, Kansas.” (Doc. 41, at 3.)
Defendant moves to quash the deposition or enter a protective order to exclude
deposition questioning relating to the Dryden litigation.
DISCUSSION
A.
Plaintiff’s Motion to Compel a Litigation Hold and for Sanctions
Regarding Spoliation.
1.
Spoliation.
“‘Spoliation’ has been defined as ‘the destruction or significant alteration of
evidence, or the failure to preserve property for another's use as evidence in
pending or reasonably foreseeable litigation.’” Asher Assocs. v. Baker Hughes
Oilfield Operations, No. 07-01379, 2009 WL 1328483, at *5 (D. Colo. May 12,
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The Court notes that new ESI guidelines have gone into effect since the Initial Order
Regarding Planning and Scheduling and the Scheduling Order were entered in this case.
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2009) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2nd Cir.
1999)).
Thus, spoliation is both the destruction of evidence
and/or the failure to preserve evidence. As such, litigants
have a duty to preserve documents or materials –
including electronic documents and materials – that may
be relevant to ongoing and potential future litigation.
Philips Electronics North America Corp. v. BC Technical, 773 F.Supp.2d 1149,
1195 (D. Utah 2011). “Such preservation may not be ‘selective,’ saving only the
evidence supporting a theory of liability and impeding the examination of another
theory.” Benton v. Dlorha, Inc., 06-CV-2488-KHV, 2007 WL 3231431, at *4
(D.Kan. Oct. 30, 2007).
Typically, the duty to preserve commences with the filing of a lawsuit, but
the duty may arise even before a lawsuit is filed if a party has notice that future
litigation is likely. Philips Electronics, 773 F.Supp.2d at 1195 (citing Asher
Assocs., 2009 WL 1328483, at *5 and Arista Records, LLC v. Usenet.com, Inc.,
633 F.Supp.2d 124, 139 (S.D.N.Y.2009) (holding that an employer had a duty to
preserve information on its employees’ computers at the start of litigation)).
A party alleging spoliation of evidence must generally establish the
following elements:
(1) that the party had an obligation to preserve the
electronic evidence at the time it was destroyed; (2) that
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the electronic evidence was destroyed with a culpable
state of mind (may include ordinary negligence, gross
negligence, recklessness, willful, or intentional); and (3)
the destroyed evidence was relevant and favorable to the
party's claim such that a reasonable trier of fact could
find it would support that claim.
Benton, 2007 WL at *4. Bad faith is not a required element unless a moving party
is requesting an adverse inference instruction relating to potentially destroyed
evidence. Turner v. Public Service Co. of Colorado., 563 F.3d 1136, 1150 (10th
Cir. 2009). Because Plaintiff has not requested an adverse inference instruction at
the present time, she will not be required to make a showing of bad faith.
2.
Litigation hold and duty to preserve evidence.
The Court finds that Defendants had a duty to preserve at least a portion of
the electronically stored evidence at issue, establishing the first of these elements.
Defendants put ESI at issue by stating that Plaintiff was fired, in part, for improper,
personal use of Defendant City’s computers. Thus, ESI relating to computer usage
by Plaintiff – as well as her coworkers in her department – is relevant to a
determination of whether this aspect Defendants’ stated reasons for her termination
is valid or pretextual. Further, Plaintiff’s counsel sent defense counsel a letter on
June 26, 2012, requesting the preservation of certain information, including
“internet usage, including e-mail usage, by each employee in the Hays Police
Department for the period beginning January 1, 2012 and ending May 16, 2012.”
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(Doc. 33-3.)
A “litigation hold” is an affirmative act taken by a party’s attorney or
management directing the party’s employees or agents to take affirmative steps to
preserve evidence which otherwise might be lost. The purpose of the hold is to
avoid the loss of evidence through intentional or negligent actions, or even through
routine document management. The Court acknowledges that Defendants may not
have been obligated to impose the scope of the hold demanded in the July 26,
2012, letter from Plaintiff’s counsel. Defendants were not, however, entitled to
simply ignore the letter, which was apparently their response. Although
Defendants claim that evidence was not lost, they do not claim that they imposed
any type or scope of “hold” on the destruction of ESI. This was improper.
At the latest, Defendants should have informed Plaintiff’s immediate
coworkers, those holding similar positions with Defendant City, and the identified
“key players”3 of a litigation hold regarding their computers, ESI, and other
relevant information regarding Plaintiff and her claims upon receipt of the June 26,
2012, letter from Plaintiff’s counsel. To the extent Defendants still have not put
such a litigation hold in place, they are instructed to do so immediately.
3
In addition to the two individually named Defendants,“key players” include Erin
Giebler (f/k/a Erin Niehaus), Brian Dawson, Paul Briseno, and Andrea Windholz.
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Defendants are also instructed to supplement their interrogatory responses to
reflect the statements made in Peter Maharry’s December 5, 2013, e-mail. (See
Doc. 33-6.)
There is no justification, however, for Defendant City to have entered into a
city-wide litigation hold of such information, as advanced by Plaintiff. (See Doc.
33-1, at 6.) The Court sees no relevance of the computer usage of employees
beyond Plaintiff’s immediate coworkers, the key players, and those who held
substantially similar positions for the City. It would be unnecessary to enter a
litigation hold encompassing all Police Department employees let alone all
employees working in all other departments of Defendant City’s government.
3.
Destruction of evidence.
The analysis thus turns to whether Plaintiff has established that any such ESI
evidence was in fact destroyed. Plaintiff focuses on three categories of
information: 1) the “Websense Server”/internet usage history, 2) Plaintiff’s
computer, and 3) e-mail. The Court will address each of these categories in turn.
a.
Websense server.
Plaintiff argues that Defendant destroyed its “Websense Server,” which
Plaintiff contends contained “the only complete record of the City’s employees’
internet usage history . . . .” (Doc. 33-1, at 8.) As Defendant City has explained,
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however, this server was not used to monitor employee internet usage, but rather as
an internet security “firewall.” (Doc. 44, at 4.) Defendant therefore contends that
it was under no obligation to preserve this server. The Court agrees.
Plaintiff has provided nothing more than assumptions and conclusory
statements in an effort to establish that Defendants had a duty to preserve the
information that would have been compiled in this server. The only substantive
evidence before the Court is that “[a]s of May 16, 2012, the City did not have a
program to monitor employees’ internet usage.” (Doc. 33-4, at 14.) Plaintiff has,
therefore, failed to establish the relevance of the Websense server and its contents.
As such, there is no evidence of spoliation in regard to this information.
Defendants did, however, put internet usage of Plaintiff, her immediate
coworkers, and those individuals performing substantially similar job duties at
issue by stating that Plaintiff was fired, in part, for improper, personal use of
Defendant City’s computers. As stated above, this information is relevant to a
determination of whether this aspect Defendants’ stated reasons for her termination
is valid or pretextual. Further, Plaintiff’s counsel sent defense counsel a letter on
June 26, 2012, requesting the preservation of certain information, including
“internet usage, including e-mail usage, by each employee in the Hays Police
Department for the period beginning January 1, 2012 and ending May 16, 2012.”
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(Doc. 33-3.)
The Court is concerned that Defendant City had the Websense server “taken
to e-waste and the hard drives . . . destroyed” in February 2013 – more than seven
months after the preservation letter was sent by Plaintiff’s counsel. Based on the
information presented to the Court, however, it seems unlikely that this server
would have contained the information Plaintiff assumes (or hopes) it would. Thus,
Plaintiff has not established spoliation in regard to the Websense server.
Even so, the Court finds there are potential spoliation issues relating to the
internet usage and email usage of the identified “key players,” Plaintiff’s
immediate coworkers, and all individuals holding substantially similar positions
for Defendant City, regardless of department. Defendant is instructed to submit to
Plaintiff on or before April 14, 2014, a proposal for compiling, reconstructing,
and/or producing to Plaintiff the “internet usage, including e-mail usage,” from
January 1, 2012, through May 16, 2012, of each of the identified “key players,”
Plaintiff’s immediate coworkers, and all individuals holding substantially similar
positions for Defendant City, regardless of department. Should the parties be
unable to come to a mutually agreeable solution on this issue, they are instructed to
contact the staff of the undersigned Magistrate Judge to set a conference to discuss
the same.
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b.
Plaintiff’s computer.
Plaintiff next argues that spoliation of documents and ESI occurred in regard
to the computer she used during her employment “given that the City gave her
computer to another employee, who used it continuously through November, 2013,
well after this lawsuit was filed.” (Doc. 33-1, at 12.) Plaintiff contends that the
computer would have been one possible location for certain of her emails that she
states were “permanently deleted and overwritten from the City’s Exchange
server” as well as her internet usage history. (Id.) Because the computer was used
by another employee after Plaintiff’s termination, however, she contends “it is
likely any deleted items on that computer’s hard drive have since been
overwritten,” necessitating forensic imaging of the computer’s hard drive. (Id.)
Defendant responds that it even though the computer was used by another
employee, Plaintiff’s “specific profile has not been altered and the subsequent use
by another employee does not affect her profile.” (Doc. 44, at 8.) Rather, her
account was locked immediately to preserve it as it was on her last day of
employment. Id. Defendant concedes that it cannot “guarantee the current status”
of the computer because of the length of time it has gone without being used. (Id.)
Even so, Defendant “did archive Plaintiff’s Exchange mailbox and H drive from
July 2012, along with the audio files previously produced and an e-mail query
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requested by the police department.” (Id.)
Because Defendant cannot guarantee the current status of the computer, the
Court finds that Plaintiff is entitled to a forensic image of the hard drive of the
computer she most recently used while employed by Defendant. This computer
should have been better protected by a litigation hold. But because Defendant
made arguably reasonable efforts to maintain the computer’s contents, and because
it is not yet apparent that data from this computer has been lost, the parties shall
split the cost of imaging the hard drive.
c.
E-mail.
Plaintiff also states that “228 e-mail messages” have been produced by
Defendants “that appear to have been deleted and only partially recovered.” (Doc.
33-1, at 13.) Plaintiff's motion, however, discusses – and provides evidence of –
only one such emails. (Doc. 33-1, at 13; Doc. 33-10.) Plaintiff argues that this
constitutes “more evidence . . . that document deletion and wiping is still ongoing.”
(Id.)
Defendants respond that they have produced “roughly 10,000 e-mails in this
case” and the 228 partial e-mails on which Plaintiff is focusing “are simply
corrupted e-mails and not evidence of any intentional destruction.” (Doc. 44, at 9.)
Defendants continue that “[t]he fact that the City maintained the e-mails and then
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produced the ‘corrupted’ versions belies any contention that it intentionally
engaged in any document destruction.” (Id.)
The Court agrees with Defendant. Plaintiff has not established that any of
these documents were intentionally destroyed before they were ultimately
recovered and produced to Plaintiff. Thus, the Court finds that, at this point, there
is insufficient evidence of spoliation of evidence in regard to the requested e-mail.
2.
Sanctions for Spoliation.
Courts have identified five factors to determine the correct sanction for
spoliation of evidence:
(1) the degree of actual prejudice to the [non-culpable
party]; (2) the amount of interference with the judicial
process; (3) the culpability of the litigant; (4) whether the
court warned the party in advance that dismissal of the
action would be a likely sanction for non-compliance;
and (5) the efficacy of lesser sanctions.
Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174, 1179 (10th Cir.2009)
(citing Ehrenhaus, 965 F.2d at 920–21).
Plaintiff asks the Court for an Order “compelling the City to submit to a
third party expert who will collect forensic images of the PC computers of Donald
Scheibler, Toby Dougherty, Brian Dawson, Erin Giebler (f/k/a Erin Niehaus), Paul
Briseno, and the computer previously assigned to Firma Helget.” (Doc. 33-1, at
17.) Other than the one “recovered” e-mail from Paul Briseno (Doc. 33-10),
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Plaintiff has provided the Court with no evidence to justify the effort, expense, and
intrusion of ordering forensic imaging of the entire hard drives of all of these
individuals’ computers.
The Court does find, however, that forensic recovery regarding the internet
usage and e-mail usage of these individuals, as well Plaintiff’s immediate
coworkers and those individuals performing substantially similar job duties for
Defendant City, regardless of department, is both relevant and discoverable.
Further, the Court finds that Defendant City had an obligation to preserve
this information. Regardless of whether it was destroyed intentionally or
negligently, Plaintiff has provided sufficient evidence that the information is no
longer readily available for production. This portion of Plaintiff’s motion is
GRANTED. Because Defendant City had a responsibility to maintain this
information, the Court orders Defendant City to bear the cost for a forensic
restoration. As stated above, Defendant City is instructed to submit to Plaintiff on
or before April 14, 2014, a proposal for compiling, reconstructing, and/or
producing to Plaintiff the “internet usage, including e-mail usage,” from January 1,
2012, through May 16, 2012, of each of the identified “key players,” Plaintiff’s
immediate coworkers, and all individuals holding substantially similar positions
for Defendant City, regardless of department. Should the parties be unable to
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come to a mutually agreeable solution on this issue, they are instructed to contact
the staff of the undersigned Magistrate Judge to set a conference to discuss the
same.
Plaintiff also requests attorney fees related to the filing of the present
motion. Based on the limited findings of this order, such sanctions would be
limited to a portion of the cost of briefing. However, the Court does not find that
Defendant City is responsible for Plaintiff’s costs and fees relating to the present
motion as the dispute between the parties was valid. Plaintiff’s request for
monetary sanctions is DENIED.
B.
Defendant’s Motion for Protective Order.
Federal Rule of Civil Procedure 26(c) governs protective orders and
provides, in relevant part:
A party or any person from whom discovery is sought
may move for a protective order in the court where the
action is pending.... The motion must include a
certification that the movant has in good faith conferred
or attempted to confer with other affected parties in an
effort to resolve the dispute without court action. The
court may, for good cause, issue an order to protect a
party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including one or
more of the following:
***
(A) forbidding the disclosure or discovery;
(B) specifying terms, including time and place, for the
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disclosure or discovery;
***
(D) forbidding inquiry into certain matters, or limiting
the scope of disclosure or discovery to certain matters;....
Fed.R.Civ.P. 26(c)(1).
The party seeking to quash a subpoena must show “good cause” for the
requested protective order. Id.; Sloan v. Overton, No. 08-2571-JAR-DJW, 2010
WL 3724873 (D.Kan. Sept. 17, 2010). To establish “good cause” within the
meaning of Rule 26(c), the party must clearly define the potential injury to be
caused by dissemination of the information. Zhou v. Pittsburg State Univ., No.
01-2493-KHV, 2002 WL 1932538, at *2 (D.Kan. July 25, 2002).
Defendant initially argues that spoliation is not an issue in the present case.
Based on the findings in this Court’s Order regarding Plaintiff’s motion regarding
spoliation, supra, the Court does not agree. The Court will not, therefore, quash
the deposition in its entirety.
Defendant also argues, however, that Plaintiff’s claims of spoliation in the
present matter “involve different types of information or data than what was at
issue in the Dryden litigation.” (Doc. 51, at 4.) Defendant continues, and Plaintiff
does not dispute, that “internet usage was not an issue” in the Dryden litigation, in
which the Plaintiff claimed he was fired because of his union activity. (Id.)
The Court therefore finds that the second category of information listed in
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Plaintiff’s deposition subpoena is irrelevant to the issues in present litigation. As
such, Defendant has established “good cause” to support the requested Protective
Order because it would be unduly burdensome per se to require Defendant to
prepare and produce a witness to be deposed on Defendant City’s efforts to
“initiate and comply with a litigation hold’” in the Dryden lawsuit. This portion of
Defendant’s motion is GRANTED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion for a Finding of
Spoliation and for Sanctions (Doc. 33) is GRANTED in part and DENIED in
part as more fully set forth above.
IT IS FURTHER ORDERED that Defendant’s Motion for a Protective
Order (Doc. 50) is GRANTED in part as more fully set forth above.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 31st day of March, 2014.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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